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part may be avoided. This is but fair to myself. In this matter I was hurried by a written request for an immediate decision out of the usual course. Fortunately no harm has resulted in this matter to any one but myself, and that is of small consequence. No decree has been made, and the matter is now res nova, in so far as all the parties are concerned. My former opinion will now go for naught. The case is not affected by it and it deserves no consideration-being based on a misapprehension of the positions of the parties. I now enter into a new consideration of the matter.

The only question submitted to me in this proceeding concerns the validity of the sixth paragraph of the will of Philip Kraker, as follows: "Sixth. I give, devise and bequeath unto my executors, the sum of two thousand dollars, in trust nevertheless for the following purposes: To pay the entire income thereof, annually, to my son, Solomon P. Kraker, until two years shall have elapsed from the date of my decease, when one-half of the trust fund shall be paid over to him; the trust of the remaining one thousand dollars ($1,000) shall then continue as before; until five years shall have elapsed from the date of my decease, when said remaining one thousand dollars ($1,000.00) shall be paid over to my son, Solomon P. Kraker, whereupon the trust herein created shall cease and come to an end."

The will contains the following general and unrestricted residuary clause:

"Seventh. All the rest, residue and remainder of my estate, I give, devise and bequeath unto my two daughters, Blanche Kraker and Ruth Kraker, share and share alike, for their own use and behoof, forever. And I hereby appoint them my residuary legatees. Should it become necessary to have a guardian appointed for any of my children, I do hereby nominate and appoint my brother-in-law, Carl Solomon, as such.”

The special guardian objects that the sixth bequest is void because the limitation of the trusts contained in the sixth clause of the will is invalid, and he insists that the $2,000 thereby attempted to be disposed of consequently falls into the residuary, and that the decree herein should so provide. As trusts of personalty in this state are now adjudged to suspend the power of alienation, modo et forma, as trusts of real property, and for the same reason (Gilman v. Reddington, 24 N. Y. at page 12; Genet v. Hunt, 113 N. Y. at page 168, 21 N. E. 91; Lent v. Howard, 89 N. Y. at page 179), they must be limited on lives in being and must terminate within, or at the expiration of, the life of the longest liver of two cestui que vie, or the trust is void in the creation. Pers. Prop. Law (Consol. Laws 1909, c. 41) 11; Emmons v. Cairns, 2 Sandf. Ch. 369, 377; Manice v. Manice, 43 N. Y: 303, 382; Wells v. Wells, 88 N. Y. 323, 331, 332; Beardsley v. Hotchkiss, 96 N. Y. 201, 216; Matter of O'Hara, 95 N. Y. 417, 47 Am. Rep. 53; Underwood v. Curtis, 127 N. Y. 523, 28 N. E. 583.

At common law, where an executory trust now arises on a too remote event, the invalidity of the trusts will not destroy the rights of the persons intended to take the proceeds, if they are ascertained. Matter of Daveron, Bowen v. Churchill (1893) 3 Ch. Div. 421; Tullett v. Corville (1894) 2 Ch. Div. 310; 3 Ch. Div. 381. In this jurisdiction if the trust is void as a perpetuity, the fund sometimes falls

into the residuary. Leggett v. Stevens, 185 N. Y. 70, 77 N. E. 874; Almstaedt v. Bendick, 47 App. Div. 265, 267, 61 N. Y. Supp. 1019; Matter of Miner, 146 N. Y. 121, 40 N. E. 788; Riker v. Cornwell, 113 N. Y. 115, 125, 20 N. E. 602; Gallavan v. Gallavan, 57 App. Div. 320, 322, 68 N. Y. Supp. 30. But the limitation in this instance I find on further reflection is not void, as I first thought was agreed by counsel.

I was under the impression, when I handed down my former direction for decree in this matter, that the counsel for all the parties had agreed that the bequest for the benefit of Solomon P. Kraker was void as a perpetuity, and that the trust fund therefore went into the residuary. But I was mistaken on this point, as I stated above. Upon further examination it is apparent to me that the decision on this bequest to Solomon P. Kraker, even since the Revised Statutes altered the common law so materially, is entirely decisive against the special guardian's contention, and that this particular bequest for the benefit of Solomon P. Kraker is as valid as it would be at common law. In the case of Warner v. Durant, 76 N. Y. 133, the same contention, now put forth by the guardian herein, was considered under an almost identical state of facts, and without dissent that eminent court affirmed the validity of a very similar bequest. There, as here, was a bequest to executors in trust to hold a specific sum for five years and at the expiration of five years to pay the same to the legatee entitled meanwhile to the interest. The Court of Appeals went directly to the heart of the matter and, ignoring forms, held that it was obvious that the testator intended that the gift was to be severed instanter from the general estate for the benefit of the legatee, and in the meantime that the interest thereof was to be paid to such legatee; that such direction was indicative of the intent of the testator that the legatee should at all events have the principal and was to wait for the same only until the day fixed. The Court of Appeals held that the gift vested at once, and they cite Matter of Hart's Trusts, 3 De G. & J. 195, although their citation is to a wrong volume of the reports of De Gex & Jones.

It is obvious to me that the Court of Appeals in Warner v. Durant were guided not only by a sense of justice, but that they had due deference to the existing law of trusts and legacies. The legatee's interest vested at once, and only payment was postponed. Chapl. Susp. Power Alien. (1st Ed.) $ 412, note 4. It might be said argumentatively that in Warner v. Durant the question arose between the legal representatives of the beneficiary of the income and those who would be entitled were the future interests held to be contingent, and that no question really arose as to whether the limitation in Warner v. Durant was an illegal suspension or a valid limitation within the rule against perpetuities. But I will not attempt to distinguish this case from that case. I have no doubt that the vice of a perpetuity under the Revised Statutes was fully considered by the Court of Appeals, as it appears to be distinctly raised in the brief of counsel. It, however, is to be observed that the language of the Court of Appeals in Warner v. Durant is that which is ordinarily associated with legal limitations and

legacies, and not with gifts to trustees on trusts under our statute of uses and trusts. They treat the gift in Warner v. Durant as if it were one directly to the use of a legatee, and they ignore that it was made through the medium of a trust. In other words, the Court of Appeals treat the gift as a mere legacy, accompanied by a direction postponing the time of payment. Matter of Mahan, 98 N. Y. at page 376; Matter of Dippel, 71 App. Div. 598, 76 N. Y. Supp. 201; Steinway v. Steinway, 163 N. Y. at pages 197, 198, 57 N. E. 312; Matter of Schmidt, 137 App. Div. at page 288, 121 N. Y. Supp. 982; Bushnell v. Carpenter, 92 N. Y. 270. In this I think they were right; the trust when stripped in Warner v. Durant was so trivial and inconsequential as to amount to a mere direction to executors to pay over. So is the trust feature in this matter before me.

That the point of perpetuity was not discussed in Warner v. Durant would be a very superficial criticism, I think, of the decision. That such decision is most just in substance and in its result is apparent. It carried the corpus to the very beneficiary intended by the testator, and this with me is a controlling circumstance, which I adverted to in my former direction in this matter. If there was any consideration in Warner v. Durant of the formal law of trusts and remainders, then prescribed by the Revised Statutes and regulating future interests in personalty, the court no doubt thought 1 Revised Statutes, 725, § 14 (now Real Prop. Law, $ 58) applicable. Van Axte v. Fisher, 117 N. Y. 403, 22 N. E. 943. But, as I stated before, the decision in Warner v. Durant does not speak in the terms of the existing law of estates, interests, and remainders. It goes straight to the heart of the matter, and it is binding on me here. As a rule of property Warner v. Durant has been often no doubt followed, although the cases citing it rarely, I think, present again the same state of facts. This matter before me does present very similar if not identical facts.

But there are other adjudications of this state which I have found for myself upon my re-examination of this case and which do speak in terms of the existing law of uses, trusts, remainders, and future interests in personalty. These decisions seem to me also applicable to this will now before me. In Keenan v. Keenan, 122 App. Div. 435, 107 N. Y. Supp. 152, there was a devise to trustees, income to a son "for a term of five years,” and if at the end of five years it shall be found that the son has abstained from intoxicating liquors the executors may turn over the property to him with the surplus or continue to hold the same in their discretion, and in case the son died without issue, remainder over, etc. The court held that, as the trust must end at the death of the beneficiary in any event, it did not suspend the power of alienation beyond a life, and that it was valid. In determining whether a trust really violates the existing rule against perpetuities, the courts will now consider whether the trust will in any event survive the period of a life, although the trust term is for a definite space of time. Kahn v. Tierney, 135 App. Div. at page 900, 120 N. Y. Supp. 663. These decisions go further than such cases as Schermerhorn v. Cotting, 131 N. Y. 58, 29 N. E. 980, and Montignani v. Blade, 145 N. Y. 111, 120, 121, 39 N. E. 719. In every case of a trust

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a court will lean toward that construction which will support the will. Coston v. Coston, 118 App. Div. at page 4, 103 N. Y. Supp. 307.

Having now reconsidered the matter and heard parties not heard before, I feel that I must adjudge the sixth clause of the will of Philip Kraker valid and sufficient to carry the legacy or corpus of $2,000 to Solomon P. Kraker as the testator intended.

Decreed accordingly.

(76 Misc. Rep. 391.)

In re JOHNSTON. (Surrogate's Court, Kings County. April, 1912.) WILLS ($ 15*)-CHARITABLE BEQUESTS PARTIAL INVALIDITY-EFFECT-D18

TRIBUTION.

Testatrix, who died leaving an estate valued at $20,842.14, of which $5,200 was real estate specifically devised to a charitable corporation, and whose debts amounted to $96.18, gave to each of two other charitable corporations a legacy of $250, and then provided that the residue should be divided among the three corporations share and share alike. Held, that since, under Decedent Estate Law (Laws 1860, c. 360 [Consol. Laws 1909, c. 13)) $ 17, providing that no person shall devise or bequeath to any charitable corporation more than half of his or her estate after payment of her debts, and such devise or bequest shall be valid to the extent of one-half and no more, the devise to the corporations was partially invalid, and that the same should be distributed by first ascertaining the money value of the estate as it remained at death, and after deducting decedent's debts, paying one-half of the remainder to the corporate legatees; the value of the real property specifically devised being also deducted from the value of the estate in so far as the executor's accounting was concerned as it passed by direct devise.

[Ed. Note.-For other cases, see Wills, Cent. Dig. $ 36; Dec. Dig. $ 15.*] Judicial settlement of the account of Henry S. Johnston, as executor of the will of Catherine E. Anderson, deceased.

Philip J. McCook, for accountant.
James P. Judge, for Sisters of the Poor of St. Francis.

Arnold & Greene (J. Warren Greene, of counsel), for Servants of Relief for Incurable Cancer.

William J. Fanning, for Mission of the Immaculate Virgin for the Protection of Homeless and Destitute Children.

Man & Man (Frederick H. Man, of counsel), for Archibald J. C. Anderson and Hugh M, Anderson,

Judge & Collins, for Irene McGovern and Veronica McGovern.

KETCHAM, S. The will under which the account is made gives general legacies of $250 each to two charitable corporations, and devises certain real estate to another like corporation. It is admitted that the value of the real estate last mentioned is $5,200. The residue of the estate is devised to the same charitable corporations, share and share alike. The value of the estate, in money, as it stood at death was $20,842.14. The amount of the decedent's debts was $96.18. With these values in evidence, the beneficial provisions of the will may be discussed with convenient inaccuracy as “legacies." *For other cases see same topic & $ NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes

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*

It is obvious that the provisions in favor of the corporations are impaired by Laws 1860, c. 360 (now Decedent Estate Law) § 17; and the question is presented whether the amounts to be paid to or enjoyed by the corporations are to be one-half of the estate after the payment of debts, or whether the same are to be still further reduced by the payment of the expenses of administration. None of these legacies is void. They are payable to the full extent intended by the will save only so far as they are to be reduced by the process of abatement defined in the statute. Stripped to terms applicable to this will, the statute is as follows: “No person

shall

devise or bequeath to any charitable corporation

more than one-half of his or her estate, after the payment of his or her debts,

and such devise or bequest shall be valid to the extent of one-half and no more."

No rule is yielded by this enactment for the reduction of these legacies, except one, viz.: Ascertain the money value of the estate as it remained at death, subtract therefrom the amount of the decedent's debts, and pay one-half of the remainder to the corporate legatees. Hollis v. Drew Theological Seminary, 95 N. Y. 166, 177. In the case cited, the question, whether or not administration expenses were to be subtracted, was not consciously entertained, but was actually involved in the direction there made, that the value of the estate should be ascertained as of the time of the decedent's death. The same direction appears in Matter of Durand, 194 N. Y, 477, 87 N. E. 677.

The expression of one thing excludes the other. “Debts” are required by this statute to be subtracted. Nothing else is mentioned as a subtrahend, and therefore nothing else can be considered. It is as if the testatrix had bequeathed “such sum as shall be equal to onehalf of my estate after payment of my debts.” That the provision for the corporations is largely in the form of a residuary gift cannot impose a reading upon the statute which its words forbid.

True, expenses of administration fall upon the residue; they always must. It is only for this reason, that the residue, whether enjoined by legatee or next of kin, is cut down by the amount of the expenses. But the residuary gift in this case fails of effect. It has been withheld by the statute. It can never be enjoyed. The law commutes it, and puts the commuted amount in its place. This done, the law creates a new residue for the benefit of the next of kin. The residuary legatees thereupon must be relieved of residuary burdens, when they lose residuary benefits, and the residuary distributees cannot take the gift of the law without carrying its weight.

The words employed in one of the briefs to fasten these expenses upon the abated legacies of the corporations seem to react. These

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words are:

"And it is always the residuary estate which must bear the expense of administration and the compensation of attorneys and executors.”

The only residuary estate in this accounting is that which the statute was intended to create and which the next of kin will enjoy.

Among the corporations affected, a difference arises as to the dis

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